*1 Zobrist, intent, stated legislative frustrate jurisdiction pretrial matters. habeas appellate our remove permitted to serve petition should not original habeas An Court, Nev. v. District Kussman purpose. this Cf. prose- argues petition Eastham In his in order jury grand indictment him obtained cution petition. considering his habeas prevent this court from case, we need not disposition this However, light petition. of the amended reach the merits staying proceed- the order petition is dismissed justice’s vacated. ings MAINTE- LUNN, AMERICAN M. ARDIS CORPORATION, NANCE a Nevada Respondent. No. Shaner, Embry Las &
Deaner, Reynolds Deaner & Appellant. Vegas, for Rose, Edwards, Pearson, Ltd., Hunt &
OPINION By Court, Manoukian, J.: appeal In this from the partial trial court’s dismissal of appellant Ardis M. Lunn’s complaint personal injuries, required we are to determine whether the court erred ruling limitations barred amended cause of a origi- who was nally pled allegation. under a Doe Finding error, no we affirm. Appellant alleged in her initial complaint May that on slipped 1975 she and fell in the common area of the Boulevard Shopping Mall Center and as a result incurred injuries. July 14, was filed included what has become common para- “John Doe” Center, Chrysler Doktor’s Pet complaint named graph.1 alleged that I-X, It defendants. I-X as Realty, Roes Does liquid flow negligent in Center Pet Doktor’s Furthermore, it walkway. the common store onto from the alleged have known knew or should all the defendants inspect rem- failed to slippery and that condition edy such situation. her first amended appellant filed August On Realty Chrysler Realty for Balcor complaint which substituted in hac verba and reasserted Mall of Boulevard the owner Thereafter, on parties. dealing fictitious paragraphs com- appellant filed the second December plaint fran- IDoe as the Statt for Dr. Arthur substituted addition, In Pet Center. Doktor’s chisee I as an for Roe to substitute purported area, a cause the common maintain agent hired causing or negligence in against all the walk- the common flow onto liquid substance to allowing the way. *3 successfully dismiss to moved Maintenance American a failure to itself for amended second period.2 The district limitations within of action cause consti- motion, amendment that the determined granting the in simply substi- than party, rather a new attempt add an tuted had reasoned that The court tute one. original first I in inadequately described been cause of effectively resulted complaints. This period. beyond limitations against new defendant a provides:
1Paragraph V of the through persons X Does I are believes that informed and Plaintiff Defendants, Defendants, who employed or associated were who negligent, employment and as a were or association an of such the course special general negligence, has suffered the Plaintiff of such result damages names fully time as the At such set forth hereunder. as more through she known to Plaintiff X become Does I and identities said Complaint forth the so as to set her Court to amend ask leave of the shall persons. true names of names, 10(a) expressly the use of fictitious Although authorizes NRCP feeling procedural thereby secu- into a false plaintiffs lulled not be should 1969). States, (9th Hill v. Cir. See also Craig F.2d 854 rity. 413 v. United See 15(c). 79, 81, (1974); P.2d 1095 NRCP Corporation, Nev. 518 90 case, designated are Where, but unnamed the instant unlike subsequent 10(a), amend- pursuant a joined to NRCP and described plead- original back to the date of providing names relates their true ing. brought within injury must damages for recover 2An action years. 11.190. NRS two 790
Appellant contends that American Maintenance should not alleged have been dismissed because were initial complaint under a fictional name. Nevada’s fictitious defend- plaintiff plead ant party a rule allows cause known; not whose name is when the name is discovered pleading may 10(a). then be amended. NRCP Such an amendment relates back to the date pleading of the allowing a defendant’s true name to be substituted after the expiration statutory 15(c). of the limitation. NRCP identity
The rule
the amendment as to a defendant’s
subsequent
to the
of the
statute
limitations was
designed
apply
plaintiff
cogni-
situation where the
identity
description
fictitiously
zant of
or
named
defendant,
Hwys.
but
Dep’t
not his true name. State
rel.
ex
v.
Court,
715, 717,
District
95
(1979).
Nev.
Accordingly,
plaintiff
we have held that when a
relied
10(a), properly alleging contemplated
NRCP
defendants and
uncertainty
names, subsequently
as to
providing
their true
effected,
pleading,
names in an
a.
substitution is
not
an
of a
Hill
addition
v. Summa
Attempts
Nev. at
In Servatius v. United Resort
455 P.2d
perceived
gov-
the
we announced
three factors that we
erning
proper
may
the determination of when a
defendant
though
in an
involved
They
proposed party
limitations has run.
are that the
defend-
action;
(1)
(2)
ant
have actual notice of the
institution
the
action;
proper
(3)
knew
it was
defendant
the
way
any
prejudice. (Citations omitted.)
not in
misled
its
Id.
present
at
plainly that would evidence intent on service, janitorial including part any respondent, have iden- party or described as a to the action. tified Finally, prejudice in Servatius manifest in referred to is respondent’s ability timely investigate this case. accident, evidence, scene of marshall locate greatly impaired. Appellant’s or is inac- witnesses been lost directly inability. responsible for this tion Here, appellant sought complaint concerning amend dangerous expressly naming condition and the cause respondent as a We therefore hold that the amend- party merely defendant and did not already correctly identify before court. determining appellant’s court acted The trial prior pleadings toll did not the statute limitations.3 order dismissal affirmed. Thompson JJ., J., Batjer, concur. Mowbray, C. J., concurring:
Gunderson,
I concur the result. KELL, THE STATE DEAN SCOTT NEVADA, OF
No. 11062
October justify proposed attempted of American 3Appellant substitution only recently name was I on the basis that depositions taken belated The fruits of discovered. provide fails to the limitation five months after any tolling statute. basis